National Environmental Management: Protected Areas Amendment Bill: Proposed amendments: deliberations & National Environmental Laws Amendment Bill: consideration of Negotiating Mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

11 November 2008
Chairperson: Rev P Moatshe (ANC, North West)
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Meeting Summary

The Department of Environmental Affairs and Tourism briefed the Committee on the National Environmental Management Protected Areas Amendment Bill, covering a number of topics in a presentation that detailed all the proposed amendments. Members’ comments focused, in their questions, on what the height restrictions would be, whether flying over protected areas did  indeed cause a negative effect on the animals, whether there was any special significance in the current rules, and whether this legislation did not need to be less rigid, as it was feared that delays might be occasioned in getting permission for emergency craft. The Department of Transport was asked to give concrete reasons for the amendment. Members were concerned that the various departments and the various stages of the process had not interacted with each other, and that disagreements should not be played out at this level. A Member proposed, and this was finally ruled by the Chairperson, that the Departments of Transport and of Environmental Affairs and Tourism must consult with each other on the question of airspace over protected areas and only revert to the Committee once the issues were fully agreed. A representative from the Commercial Aviation Association of Southern Africa then raised the point that although this Association had made input none of the contents of their submission had been raised at Committee levels. Members felt that it was still possible, despite the public hearings in the provinces, to hear other submissions. Members did not see the urgency of concluding the Bill, commented that there had been some serious aviation accidents recently, and that the matter  was deserving of full attention. The Department suggested that the other amendments could be finalised, leaving only this one issue outstanding but this weas ruled out of order

The Committee then asked the delegates to read out their provincial Negotiating mandates that they had received, in respect of the National Environmental Laws Amendment Bill. It was noted that each of the provinces had been briefed and there had been some public participation. However, because of the complexity of some of the proposed amendments, it was agreed that the mandates would be forwarded to the Department of Environmental Affairs, who should prepare a written document responding to the issues raised, to be presented in the following week.

Meeting report

National Environmental Management Protected Areas Amendment Bill (the Bill): Departmental briefing
Mr Ishaam Abader, Deputy Director General, Department of Environmental Affairs and Tourism made a presentation, following the attached document, on the amendments that were proposed in respect of the National Environmental Management: Protected Areas Amendment Bill.

The Chairperson noted that the Department of Transport (DoT) were not present but would be  arriving late.

Mr V Windvoel (ANC, Mpumalanga) asked what was meant by a two-thirds majority in relation to Clause 5, which was amending Section 54 of the Protected Areas Act (the principle Act).

Mr L van Rooyen (ANC, Free State) asked why there seemed to be an urgency to adopt the amendments.

Mr van Rooyen noted that he was concerned with aircraft flying over the protected areas, and whether at the height of 38 000 feet there would be a negative effect on the animal life in the park. He asked whether there was any special significance or difference in the normal traffic rules presently in force, for example, in the Kruger National Park, and in the traffic rules in the proposed legislation under Clause 6(d) amending Section 55. He added that all visitors to the park were required to sign an undertaking to honour such rules.

Mr F Adams (ANC, Western Cape) agreed with Mr van Rooyen that aircraft flying over protected areas did not necessarily create a negative effect on the animal life. He called for the legislation to be less rigid, especially given the possibility of rescue flights. He also cited the need to specify the type of aircraft that could be allowed or disallowed.

The Chairperson raised the challenge on how such boundaries could be set, and stated that the members were rightfully concerned about whether there would indeed be a disturbance. He asked that the Department of Transport give concrete reasons for making this amendment.

Mr A Watson (DA, Mpumalanga) questioned whether the matter of airspace had not already been fully deliberated during the Portfolio Committee stage, and whether then, by implication, there was no reason to discuss this matter fully afresh in this Committee.

The Chairperson commented that it seemed as if the various stages in the formulation of this Bill were operating in isolation of each other. He asked how the Committee, and more especially the two Departments concerned, could defend this disjointed process.

Mr Windvoel said that the points raised were interesting and of merit, but that it was unfair that disagreements between the Departments should play themselves out during the NCOP stage. He proposed that further consultation between the Departments should take place and that they should return to this Committee only once the matter of airspace over protected areas had been fully discussed and concluded.

Mr Abader replied that it had been an instruction from the Portfolio Committee to formulate the height at which aircraft may fly over protected areas. He stated that the difficulty was how to apply this in practice. An Act of Parliament should be sufficient. Furthermore, South African National Parks (Sanparks) intended to increase its scope so as to allow proper management of the parks. This amendment in Clause 4 comprehensively referred to all aspects of flights and emergency flights, in relation to protected areas.

Dr Geoff Cowan, Deputy Director, DEAT, added that there were practical reasons for the amendment which included disturbance of animals, pollution and the effects of an aircraft crash. He said that protected areas made up roughly 3% of the country’s land, and research in relation to disturbance from aircraft was supported by the figures. He said a precedent had been set in North America and Antarctica, whilst at the Victoria Falls and Okavango Swamps there were continual complaints from visitors to those areas. In developing this Act a height of 500 feet above ground level was discussed. Recent meetings with Civil Aviation raised possible changes to the height depending on the technology available, as well as its inclusion in map systems.

A representative from the Commercial Aviation Association of Southern Africa (CAASA) stated that a document had been submitted by this Association as part of the public participation process, but none of the contents of this document had been raised in the Committee. He asked the Chairperson whether he would be allowed to deal with some of the issues with regard to the matter of airspace.

The Chairperson responded that in terms of procedure, public hearings had taken place via the provinces, and therefore submissions from the public could not be allowed at this meeting.

Mr Watson pointed out that it would be within Constitutional rights to refer the Bill for another round of public hearings.

Mr Windvoel reiterated that the Departments needed further consultation with each other and to thereafter participate in the discussion before the Committee.

Mr van Rooyen wanted to know whether the issue of fines would be discussed.

The Chairperson at this stage acknowledged the arrival of the representatives from the Department of Transport and commented that it had been difficult to contact them. He said they could proceed with their input on the questions raised thus far.

Dr Cowan stated it had previously been an oversight to omit the traffic rules from the Act, and it was an which Sanparks deemed important to include.

The Department of Transport’s representative stated that South Africa was a signatory to the Convention on International Civil Aviation of 1944 signed in Chicago, and that this bestowed powers on the Minister in the interests of aviation safety. He said that there was a National Airspace Masterplan, which complied with an international standard, as set out in the South African Civil Aviation Authority’s regulations. He said that not all safety issues had been covered under this legislation and amendments needed to be considered in order to comply with international standards. Their proposal centred on the extent of the amendment and the recommended height.

Mr Watson said that the disagreement over airspace at Ministerial level between the two Departments was reminiscent of sparring, and reflected poorly on the Departments.

Mr van Rooyen agreed  with Mr Watson and added that it was still not clear why there was any particular urgency in concluding the Bill. The issue was a valid one, especially taking into account the serious aviation accidents in our country. This factor was negatively impacting on South Africa’s international rating. However, despite this, he said the matter must be referred to be dealt with at a level other than this Committee.

Mr Windvoel said that the Departments should strive for a common goal and if necessary reach a compromise. He also agreed with Mr Adams that should there be a rescue mission, delays could be experienced as a result of waiting for the authorisation to fly over protected areas.

The Chairperson said he could not see the reason for not agreeing. He said that the Departments should present before this Committee after consultation with each other.

Mr J Durand, Parliamentary Officer for DEAT, said that the Bill had been in the process for a long time, and that next week would be Parliament’s last plenary session.

Ms B Dlulane (ANC, Eastern Cape) appealed to the Chairperson to rule on Mr Durand’s statement as it was out of order.

The members were unanimous with the Chairperson that the Bill should be referred for a further round of public hearings.

Mr Abader said that he agreed, but cautioned that it would have to go through all the provinces, and therefore suggested that the amendments that were deemed to be acceptable by the Committee should be adopted in the meantime, leaving only the one issue outstanding.

Ms Dlulane again raised a point of order, saying that all the amendments, as a consolidated whole, would be considered in one sitting.

Mr Windvoel said he found it unacceptable for the Department to question the ruling of this Committee, and reiterated his proposal that the Departments engage in consultation and find a compromise.

The Chairperson said he was making an appeal to the Departments to ensure that in the future this situation never occurred again. This was his final ruling

National Environmental Laws Amendment Bill
The Chairperson asked for representatives of each of the Provinces to submit their negotiating mandates.

Ms Dlulane said the Eastern Cape was in support of the Bill, but had proposed some amendments. She read out each of the amendments.

The Chairperson asked for comments.

Mr Watson suggested that after all the provinces had read out their negotiating mandates, the Department should give its feedback.

The Chairperson said that the negotiating mandates should have already have been formulated in the terminology of amendments.

Mr V Windvoel wanted to know whether the word “amendments” had been used, in which case the Committee could deliberate on whether these were to be included or not. He also said that the Eastern Cape had had its briefing, but there was no indication whether public hearings took place.

Ms Dlulane said she could not say whether any members of the public had arrived to participate, but said that the negotiating mandate was a true reflection of what did take place. She continued to read out the mandate.

The Chairperson said that it was not clear what would be negotiated.

Mr Watson said this was the normal process.

The Chairperson invited the Department of Environmental Affairs and Tourism (DEAT) to comment.

Mr Abader said that the proposal by the Eastern Cape was, in his opinion a major amendment. He said it seemed that it was proposing that something similar to the Road Accident Fund be set up, and he questioned how this would be captured in the legislation.

Ms Dlulane said it was relevant to the Bill, and that Mr Abader should clarify what he meant.

Mr Abader responded that there already existed a normal civil remedy for loss or injury. He added that there was an issue around the source of funding for the compensation suggested.

Mr Watson made a suggestion that all the negotiating mandates be heard, and that the Department make a detailed written response for consideration by the Committee at another meeting.

The Chairperson agreed that it would be unfair on the Department to respond here and now and asked that the Department must return in the following week. He said that this would lead to a more refined process. 

Ms D Tsotseksi (ANC, Gauteng) said that the wording should not refer to “amendment” but “suggested amendment”.

The Chairperson said that the Committee would follow the process as suggested by Mr Watson.

The delegates then proceeded to read out the mandates.

Mpumalanga supported the principles but suggested amendments to Clauses 1, 29, and 19(b).

Limpopo commented that much would still need to be done in the environmental education field. This province commented on the lack of consistency in the wording in clauses 1, 12(b), 29(a) and suggested a cross referencing and an additional mention of provincial legislation.

KwaZulu Natal made proposals for amendments on clauses 1, 3, 12(a), 26, 29, 31, 36, 40 and 51.

Free State made some general comments on mining and keeping of livestock, and then also recommended amendments to Clauses 5, 13, 17 and 18, and Clause 19.

The Chairperson asked that the Department return in the following week to give feedback .
The meeting was adjourned.

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